Corporate Governance

From the Pages of The Pomerantz Monitor: How Judges Are Elected, or Art Imitates Life

By Carolyn Moskowitz

An article in the April issue of The Pomerantz Monitor addresses potential problems caused by our current practice of electing judges. During the first week of March, the U.S. Supreme Court heard argument in Caperton v. Massey Coal Company, which presents the question of whether a judge must recuse himself from a case if one of the parties had spent heavily to get that judge elected to the bench. Here Massey CEO Don Blankenship had paid $3 million to buy television spots attacking the judge?s opponent in the previous election to the West Virginia Supreme Court. That court was scheduled to hear an appeal from a $50 million verdict against Massey. Three million dollars was more than enough to swing the election. Blankenship?s favored candidate won and later provided the deciding vote in a 4-3 ruling that overturned the verdict against Massey. 

Sound familiar? That is more or less the plot of John Grisham?s 2008 best seller, ?The Appeal,? which was billed as a novel but was obviously inspired by the facts of this case.  In recent years some judicial elections have resembled campaigns for political office, involving big money and turning on hot button issues. While candidates can refuse contributions from anyone, there is no way they can stop people from making independent expenditures on their behalf. If the Supreme Court rules that recusal is not required in such cases, wealthy people can try to ?buy? judicial elections for candidates they think will rule in their favor. If recusal is required, wealthy people can force unfriendly judges to disqualify themselves from ruling in their case simply by buying a few ads in that judge?s election campaign. 

In other words, heads they win; tails we lose.

Full post as published by PomTalk on April 20, 2009 (boomark / email).